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poration in supplementary proceedings can | Y. 178, 183, 54 N. E. 781, 73 Am. St. Rep. be found in some other statute.

678. In view of the policy so clearly disclosed in the general laws relating to corporations we should not assume that the Legislature intended to change it by the amendment of section 2463 of the Code in 1908, unless the inference of such intent is inevitable; and it is not. The amendment simply had the effect of making domestic corporations subject to the provisions of the article in which the section occurs; that is to say, the provisions for the institution and

Proceedings supplementary to execution under the old Code of Procedure were applicable to natural persons only. Logan v. McCall Publishing Co., 140 N. Y. 447, 35 N. E. 655. They continued to be thus restricted under the Code of Civil Procedure, except in respect to certain specified foreign corporations until 1908, when the restriction was removed. This appears by the language of section 2463, which is the last section in article I of title XII of the Code of Civil Pro- maintenance of supplementary proceedings. cedure, which article is entitled "Proceedings to Compel an Examination of the Judgment Debtor, and of His Debtor or Bailee." Prior to 1908 that section provided as follows: "This article does not apply where the judgment debtor is a corporation created by or under the laws of the state or a foreign corporation specified in section 1812 of this act, except in those actions or special proceedings brought by or against the people of the state."

By chapter 278 of the Laws of 1908 this section was amended so as to omit the words above quoted. It is contended in behalf of the appellant that this amendment not only

renders domestic corporations liable to proceedings supplementary to execution, but also to the receivership in such proceedings provided for in article II of the same title in the Code. The argument is that the right to maintain supplementary proceedings against domestic corporations having been conferred upon their judgment creditors, it necessarily includes the right to an appointment of a receiver in such proceedings. The learned judges of the Appellate Term, however, whose opinion was adopted by the Appellate Division, rejected this view on the ground that the appointment of a receiver of the property of a domestic corporation for the benefit of a vigilant judgment creditor was contrary to the policy of our law and the express provisions of statute-namely, section 306 of the General Corporation Law.

It had no effect upon the provisions of a
subsequent and different article relating to
the receivership; and this limitation of its
effect harmonizes the Code provisions with
the general law relating to corporations and
while permitting creditors to avail them-
selves of supplementary proceedings to as-
certain the existence of corporate property
and follow it up in case of attempts to hide
it, they were, nevertheless, compelled, if they
desired a receivership, to submit to one in
other words, the Legislature did not intend
which no preferences were permitted.
to change the law so as to allow preferences
to be obtained by the creditors of insolvent
corporations. If it meant to do this it would
have said so in unmistakable language.

In

The order appealed from should be affirmed, with costs, and the question certified answered in the negative.

HISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur. Order affirmed.

(93 Ohio St. 391) STATE ex rel. K-W IGNITION CO. v. MEALS et al., Judges. STATE ex rel. WILLIAMS et al. v. SAME. (Nos. 15149, 15150.) (Supreme Court of Ohio. Feb. 8, 1916.)

(Syllabus by Editorial Staff.) APPEAL AND ERROR 80(3)-DECISIONS REVIEWABLE-FINALITY Of Order.

An order of the court of common pleas finding the allegations of the petition to be true and that plaintiff is entitled to the relief prayed for, granting an injunction, ordering an accounting, and appointing a referee to determine the amount due is appealable to the Court of Appeals, though a further order of the court was necessary to carry into effect the right settled by the order.

[1, 2] We think the courts below were right in both respects. So far as domestic corporations are concerned, the policy of this state as disclosed in its legislation has for many years favored a pro rata distribution of the assets in case of insolvency. This is manifested in sections 112 and 134 and 261 of the General Corporation Law and section 66 of the Stock Corporation Law. A receiver appointed under the General Corporation Law acts for the benefit of all the creditors of Error, Cent. Dig. § 429; Dec. Dig. 80(3).] [Ed. Note.-For other cases, see Appeal and the corporation, who are thus assured that no one will acquire a preference over any Applications by the State, on the relation other in the distribution of its assets; where- of the K-W Ignition Company, for writ of as a receiver in supplementary proceedings prohibition to Meals and others, Judges, and represents only the creditor who procured by the State, on the relation of A. F. Wilhis appointment and such others as may liams and another, for prohibition to the have caused the receivership to be extended same respondents. Writs denied. to their claims, each becoming entitled to payment in full in the order of his diligence. Stephens v. Meriden Britannia Co., 160 N.

Gage, Day, Wilkin & Wachner, of Cleveland, for relators. Stearns, Chamberlain & Royon, of Cleveland, for respondents.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

PER CURIAM. The grounds upon which | sum of $53,030.12, with interest from the the relators in these cases base their right 10th day of August, 1914, and that the K-W Ignition Company be enjoined from manufacturing, using, and selling said master vibrators until said judgment shall be paid. Error was prosecuted to this court by the K-W Ignition Company, and the judgment of the Court of Appeals was affirmed (92 Ohio St. 128, 112 N. E. 199), and a mandate vas sent to the Court of Appeals to carry the said judgment into execution.

to a writ of prohibition are identical. On the 25th day of August, 1913, the Unit Coil Company commenced an action in the court of common pleas of Cuyahoga county against the relator, the K-W Ignition Company, in which it set forth that on the 20th day of February, 1912, it entered into a written contract with the K-W Ignition Company by which it had granted to the K-W Ignition Company a license to manufacture and sell certain machines claimed to be covered by letters patent owned by it, the Unit Coil Company, and that by the terms of said contract the K-W Ignition Company was to pay for the privilege of manufacturing under said license a royalty of 50 cents for each machine so manufactured. It was claimed in said action that the K-W Ignition Company had manufactured a large number of machines, which were known as master vibrators, and had not paid the royalty due and payable under said contract. The Unit Coil Company prayed for an accounting of the machines so manufactured, a finding and judgment for the amount due under said contract, and for an injunction to restrain the K-W Ignition Company from manufacturing said machines unless said royalties were paid. Upon the hearing of the cause in the court of common pleas the court made and entered the following order:

"Sept. 18, 1913. To Court: This cause came on to be heard on the 15th day of September, A. D. 1913, upon the pleadings and the evidence, in consideration whereof the court finds that the allegations of the petition are true, and that the plaintiff is entitled to the relief prayed for. Wherefore defendant is enjoined from the manufacture, use, and sale of all apparatus, and especially master vibrators, covered by letters patent to Willard E. Dow No. 752,384, dated February 16, 1904, for electrical igniter for explosive engines and letters patent to Reuben Miller, Jr., No. 754,666, dated March 15, 1904, for induction coils, and from the use of the words 'Patented February 16, 1904, and March 15, 1905,' until defendant has paid plaintiff at the rate of 50 cents each for all vibrators manufactured by defendant since March 1, 1912. accounting is hereby granted plaintiff, and Clinton De Witt is appointed referee and directed to take the testimony of witnesses in writing, to determine how many master vibrators defendant has manufactured since March 1, 1912, and to report such testimony, with the amount found due plaintiff from defendant upon the number of master vibrators manufactured since March 1, 1912, at 50 cents each, to the court, without unnecessary delay. Defendant's appeal bond is fixed at $10,000. Judgment for costs is rendered against defendant. Defendant gives notice of appeal. Journal 193, page 140."

After this mandate was filed in the Court of Appeals the relators herein filed their ap plications respectively in the Court of Appeals to have the judgment theretofore entered by said court set aside and vacated, alleging that the same was entered without the Court of Appeals having acquired jurisdiction over the subject-matter by reason of the fact that there had been no final order or judgment in the court of common pleas from which an appeal could be taken, and because said cause had never been fully tried and determined in the court of common pleas. The Court of Appeals denied these applications, and refused to grant any relief thereunder.

It is alleged in the petitions filed herein for a writ of prohibition that the respondents made and entered an order requiring the relators, the K-W Ignition Company and A. F. Williams and Conrad Albracht, who are officers, directors, and stockholders of the K-W Ignition Company, to appear and show cause why they should not be punished for failure to comply with the judgment and decree of the Court of Appeals, that a writ of execution has been issued and placed in the hands of the sheriff commanding him to levy upon the goods, chattels and property of the K-W Ignition Company to satisfy said judgment, and that said company has a large amount of property used in its business which is subject to seizure upon said writ. It further appears that the relators A. F. Williams and Conrad Albracht filed their application to set aside and vacate said order requiring them to show cause why they should not be punished for failing and refusing as officers and directors of said company to comply with the judgment and decree of the Court of Appeals, for the alleged reason that said judgment of the Court of Appeals was void and of no effect, which motion was overruled by said court. relators are asking this court for an order directed to the respondents requiring them to show cause why a writ of prohibition should not be awarded against them, that on the final hearing a writ of prohibition be awarded prohibiting the respondents from proceeding further with the enforcement of the execution of said judgment and decree and that all orders, decrees, and the judg ment of said Court of Appeals in said cause be vacated and held for naught.

The

After this order was made the defendant in said cause, the K-W Ignition Company, filed an appeal bond in accordance with the order of the court of common pleas, and the cause was docketed in the Court of Appeals of Cuyahoga county. In that court the cause was heard upon the pleadings and the evidence, and it was ordered that the plaintiff in said cause, the Unit Coil Company, re- The only question for determination is

STIPULATIONS LIMITING LIABILITY-PERSONAL PROPERTY-CONCURRENT INSURANCE. As to personal property, the stipulations named in the policy are valid, and recovery based upon insurance contracts containing such stipulations is limited to the proportion of the the whole insurance. loss that the amount thereby insured bears to

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1270-1272, 1285–1290; Dec. Dig.

Wanamaker, J., dissenting.

pleas of the date September 18, 1913, was 14. INSURANCE 495(1), 504-FIRE POLICYone from which an appeal could be taken to the Court of Appeals. If it was not, the Court of Appeals had no jurisdiction of the subject-matter, and its judgment was a nullity. It is to be observed that in the order of the court of common pleas the allegations of the petition are found to be true, and that plaintiff is entitled to the relief prayed for. An injunction is granted, an account-495(1), 504.] ing is ordered, and a referee appointed to determine the amount due. The general equities of the case were found in favor of the plaintiff, and, while the further order of the court was necessary to carry into effect the right settled by the order, it was merely auxiliary to or in execution of the order of the court made on the merits of the case, and we are of the opinion that the Court of Appeals had jurisdiction of the subject-matter on appeal.

Writs denied.

NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES and MATTHIAS, JJ., concur.

(93 Ohio St. 404)

(Additional Syllabus by Editorial Staff.) 5. INSURANCE COINSURERS "CONTRIBUTION."

m604

In insurance law, the term "contribution" has a fixed legal meaning. It is a principle sanctioned in equity, and arises between coinsurers only, permitting one who has paid the whole loss to obtain contribution from other insurers, who are also liable therefor.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1502, 1503; Dec. Dig. 604. For other definitions, see Words and Phrases, First and Second Series, Contribution.]

Error to Court of Appeals, Fairfield County.

Action by one Dennison against the National Fire Insurance Company. A judgment for plaintiff was affirmed by the Court of

NATIONAL FIRE INS. CO. v. DENNISON. Appeals, after ordering a remittitur to cor

(No. 14776.)

(Supreme Court of Ohio. Feb. 15, 1916.)

(Syllabus by the Court.)

rect a manifest mistake in the verdict, and defendant brings error. Reversed.

This was an action by the defendant in error against the National Fire Insurance Com

1. INSURANCE 504 CONCURRENT INSUR-pany on three separate policies. One policy ANCE-RECOVERY ON FIRE POLICY.

An insurance company issued three separate policies of insurance, one covering a frame building and two covering a stock of goods, furniture, and fixtures contained therein. At the time of the fire there was concurrent insurance by other companies on the same property in specified Each of these policies contained a stipulation that the company should not be liable under the policy for a greater proportion of any loss on the described property than the amount thereby insured should bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property. The insured suffered partial loss by fire on both the building and personalty, held:

In such action, on the policy issued on the building, the insured could recover for the full amount of the partial loss thereon, and was not limited by any such stipulation to a proportionate amount that such policy bore to the whole insurance.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1285-1290; Dec. Dig. 504.] 2. INSURANCE 495(1)-FIRE POLICY-STIPULATION LIMITING LIABILITY-VALIDITY. As to the building, such stipulation limiting liability and payment for the actual partial loss, was void by reason of the valued policy law. Sections 9583 and 9584, General Code.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1270-1272; Dec. Dig. 495(1).] 3. INSURANCE 495(1)-FIRE INSURANCE— VALUED POLICY LAW-OPERATION.

was for the sum of $1,000 on a frame building occupied as a general store. The second policy was for the sum of $1,000 on the stock of goods, furniture, and fixtures therein, $20 of that amount being upon the furniture and fixtures, and the third policy was issued for the sum of $2,000, $40 of which was placed upon the furniture and fixtures. The petition averred, and the answer admitted, that after the fire a written agreement was entered into between the insurer and the insured by which the amount of the loss on the building was fixed and determined in the sum of $225, and the amount of loss upon the stock of goods was likewise fixed and determined in the sum of $2,106.43. By a similar arrangement the actual loss on the furniture and fixtures was determined to be in the sum of $100. Each of the policies contained a clause granting permission for other concurrent insurance.

The insurance company filed an answer containing several defenses to the causes of action set forth in the petition. It alleged that each of the policies of insurance contained a stipulation providing that the company should not be liable under the policy for a greater proportion of any loss on the described property than the amount thereby insured should bear to the whole insurance, whether valid or not, or by solvent or in495(1).] solvent insurers covering such property, and

These sections of the valued policy law apply to buildings and structures named therein and do not affect insurance contracts covering personal property.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1270-1272; Dec. Dig.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

further alleged in its several defenses that the policy the liability of each insurance at the time of the fire there was concurrent company is several and not joint." insurance other than said policies of insurance, severally named in the petition, that upon the frame building mentioned in the petition there was concurrent insurance to the amount of $1,000, and that there was concurrent insurance other than the policies of insurance described in the petition upon the stock of general merchandise in the sum of $6,860, and further concurrent insurance in the amount of $140 on the furniture and fixtures. Each policy in suit contained the following provision:

"This company shall not be liable under this policy for a greater proportion of any loss on the described property * than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property." In support of this feature of its defense the insurance company sought to show by an examination of the defendant in error that there were other policies of insurance issued and outstanding at the time of the fire upon the property covered by the policies, and that such concurrent insurance had been issued by the Etna Insurance Company and was in force at that time. The court refused the admission of this testimony, whereupon counsel for the insurance company offered explicitly to show that the Etna Insurance Company had issued a concurrent policy in the sum of $1,000 on the building, and another policy for $1,960 on the stock of goods and an additional $40 on the furniture and fixtures.

Upon the question of recovery, the parties having admitted by the pleadings mutual determination of the amount of the loss to the building and personal property, the court charged the jury as a matter of law that the plaintiff was entitled to recover the full amount of such determined loss with interest. A verdict for the full amount was rendered by the jury, and the judgment thereon was affirmed by the court of appeals after ordering a remittitur in the sum of $40 which manifestly was erroneously incorporated in the verdict.

J. W. Mooney and R. M. Edmonds, both of Columbus, and W. K. Martin, of Lancaster, for plaintiff in error. M. A. Daugherty, J. S. Sites, and Brooks E. Shell, all of Lancaster, for defendant in error.

JONES, J. The contention of the plaintiff in error is that, in view of the stipulations in its several policies limiting its liability in case of concurrent insurance, its liability is fixed thereby, and that under such condition such liability, "where the whole loss upon an item of property is less than the total amount of insurance upon such item, is limited to such proportion of the whole loss upon that item as the amount insured by that company bears to the total insurance covering that item of

[1, 2] It has generally been held by the courts of this country that, in the absence of a statute affecting the limitation of liability upon the part of the insurer, a stipulation of the character contained in this policy may serve to fix and limit a ratable liability measured by the proportion of its insurance to the aggregate insurance. In such cases the courts have generally held that such a provision, in case of other concurrent insurance, made the liability several and not joint, and that a recovery cannot be had for more than the pro rata amount stipulated for and fixed by the parties in their insurance contract.

This principle was announced by our own court, before the passage of our valued policy law, in the case of Good v. Buckeye Mutual Fire Ins. Co., 43 Ohio St. 394, 2 N. E. 420, where, under a similar provision, it was held that the liability of the defendant was several and not joint, and that in ascertaining the defendant's proportionate share of the entire loss, reference should be had to the aggregate insurance without regard to the fact that some of the companies had settled for a less sum than they were liable for, or whether they were insolvent or otherwise. The principle so announced would still obtain if not affected by a statute controlling the stipulation contained in the policy. In so far as the parties have attempted to employ this provision in fixing the liability in case of loss to buildings and structures in this state, they are confronted by our present valued policy law, which denies them this right. What is known as the valued policy law is now contained in sections 9583 and 9584, General Code. These sections provide that any one insuring any building or structure against loss or damage by fire shall cause such building or structure to be examined by his or its agent, a full description thereof be made, and its insurable value be fixed by him. In the absence of any change increasing the risk without the consent of the insurer or intentional fraud on the part of the insured, section 9583 provides:

tioned in the policy or renewal upon which the "In case of total loss, the whole amount meninsurer receives a premium, and in case of a partial loss, the full amount thereof, shall be paid."

Adhering to the rule uniformly adopted in this state that this section becomes a part of every fire insurance contract, it devitalizes every such contract inconsistent with its provisions. This section requires in all cases of total loss to buildings and structures that the whole amount mentioned in the policy upon which the insurer received a premium shall be paid, and furthermore that in case of partial loss the full amount of such partial loss shall be paid. The seeming contention of counsel for plaintiff in error is that, in the face of this statute, only a pro

This contention would nullify the plain terms | goods and fixtures, and to these the valued of the statute. It is attempted to enforce policy law did not apply. this construction by reference to section 9584, General Code, which provides:

"When there are two or more policies upon the same property, each policy shall contribute to the payment of the whole or the partial loss in proportion to the amount of insurance mentioned in each policy."

[3, 4] An examination of the sections above named will show clearly that the law applied only to policies covering buildings or structures. There are many and vital reasons why the valued policy law should not apply to personal property which will at once which have adopted valued policy statutes occur to any one. Many of those states similar to our own have denied the application of the statute to personal property and applied it to realty only. And in so far as the Ohio courts have passed upon the subject, this view has been sustained in the opinions in the following cases: Insurance

The latter section has been construed in the case of German-American Ins. Co. v. McBee et al., 85 Ohio St. 161, 173, 97 N. E. 378, and it is there plainly shown that the inadvertent change of the word "of" to the word "to" in the separation and codification of the act was not intended to alter its apparent meaning and purpose. The original valued policy act is found in 76 Ohio Laws, 26. The two present sections were in that act united and separated by a semicolon only, the lat-L. R. A. (N. S.) 456, 118 Am. St. Rep. 891. ter portion thereof providing that in case of concurrent insurance each policy "shall contribute to the payment of the whole of the partial loss in proportion to the amount of insurance mentioned in each policy."

Co. v. Leslie, 47 Ohio St. 409, 414, 24 N. E. 1072, and Germania Fire Ins. Co. v. Werner, 76 Ohio St. 543, 553, 81 N. E. 980, 12

principle adhered to by the courts of this country, and as announced in the case of Good v. Buckeye Mutual Fire Ins. Co., supra, obtains, which is that as to those policies the contract is for a several liability, and the parties may, as stipulated, agree upon a fixed liability for a proportionate share of the entire loss.

Inasmuch, therefore, as the valued policy act did not affect insurance contracts relating to property other than buildings and structures within the terms of that statute, [5] In insurance law the term "contribu- it did not attempt to interfere with contractual relations of parties to insurance contion" has a fixed, legal meaning. It is a principle sanctioned in equity, and arises be- tracts covering the personal property detween coinsurers only, permitting one who scribed in the second and third policies of has paid the whole loss to obtain contribu-insurance in this case, and as to them the tion from other insurers who are also liable therefor. And, as the term relates to insurance, as used in the context, that is its evident meaning. It does not mean, as otherwise claimed, that the "contribution" is made to the plaintiff by each insurer, under that act, for contribution does not equitably arise between the insurer and insured. In this view, as originally enacted, the meaning of the entire section seems to be clear: that is, in cases where buildings and structures are insured, both the total loss or the partial loss must be paid by the insurer, but in case of partial loss, where there is concurrent insurance on the same property, a contribution shall accrue to the insurer paying the whole of the partial loss, from other concurrent insurers, "in proportion to the amount of insurance mentioned in each policy."

In the case at bar the facts show that only partial losses were sustained on both real estate and personalty. The first section cited above imposes liability for the payment of the full amount of the partial loss upon the insurer, and the second section gives him the right of contribution against other insurers issuing concurrent insurance. Had the court, therefore, in the instant case, before it merely a policy covering the buildings and structures within the meaning of the valued policy law, there would have been no error on its part in refusing evidence showing other concurrent insurance as a means of fixing a pro rata liability under the stipulations of the insurance contract, for the reason that in such case such a stipulation would be void. Two of the policies in question, however, covered a stock of

While there has been no Ohio case presenting the question here involved the principle here announced is consistent with the court's prior adjudications upon this subject. The case of Good v. Buckeye Mutual Fire Ins. Co., supra, was decided upon a policy issued ten months before the passage of the valued policy law and therefore the rule announced in that case cannot now apply to the insurance on buildings and structures within the meaning of that act. But the case sustains the view that, unaffected by the valued policy law, the policy condition would be valid and would cover both buildings and personalty. On the other hand, where personalty was involved under a similar policy stipulation, in the case of Royal Insurance Co. v. Ries, 80 Ohio St. 272, 88 N. E. 638, it was held that, although fixed by appraisement, the amount the plaintiff could recover was limited to a proportionate amount of the loss determined; while in the case of German-American Ins. Co. v. McBee et al., supra, where the policy was issued upon structures and buildings within the meaning of the statute, and which also contained a stipulation of liability limitations similar to the present case, the plaintiffs recovered a judgment for the full amount of the total loss, evidently under the provisions of the valued policy act and in the face of

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